From: Freeman, Robert (DOS)
Sent: Wednesday, March 09, 2011 9:26 AM
Subject:    RE: FOIL requestitem #3  cost
Attachments:      f18127; f17953

Good morning - -

Having reviewed the responses that you received, it appears that there is a misunderstanding of the law.  Attached are two opinions dealing with the provisions relating to fees that offer clarification and may be helpful.

A careful reading of FOIL, §87(1)(b), indicates that the fee for photocopies up to 9 by 14 inches is limited to 25 cents per photocopy (unless a different fee is prescribed by statute; a statute, according to the courts is an act of the State Legislature or Congress), regardless of the time needed to locate, retrieve, review, redact or delete. The next clause in that provision refers to "other" records, those that are larger than 9 by 14 or, more often in 2011, maintained electronically.  In those instances, the fee is based on the actual cost of reproduction.  The provisions concerning that standard are found in §87(1)(c).  In brief, if it takes two hours or more to "prepare" the records, i.e., by entering queries, etc. in order extract data, an agency may establish a fee based on the hourly salary of the lowest paid employee able to do the job, plus the cost of media, i.e., a disk; if it takes less than two hours, the only fee that can be charged would involve the cost of storage media.

I note that if a paper record includes items that may be withheld, such as a social security number or medical information, an agency may make a photocopy from which the proper redactions would be made, and may charge up to 25 cents per photocopy.

I will be here until about 2:30 if you would like to discuss the issue in greater detail.


Robert J. Freeman
Executive Director
Committee on Open Government
Department of State
One Commerce Plaza
Suite 650
99 Washington Avenue
Albany, NY 12231
Phone:  (518)474-2518
Fax: (518)474-1927